Friday, 30 September 2016

What do
documents about negotiations of the Transatlantic Trade and Investment Partnership
(TTIP), oversight of the EU’s Food Safety Authority or Tax-Justice have in
common? In order to access these documents, (selected) Members of the European
Parliament are requested to attend closed
reading rooms. This blog post discusses how an exception to open parliamentary
oversight is increasingly becoming a regular institutional practice and
questions its spillover effect on requests for public access to documents.

Background

As the
wording suggests, ‘closed reading rooms’ are meetings that take place behind closed
doors with the purpose of reading certain sensitive documents, particularly EU
official secrets. Documents are distributed at the beginning of the meeting and
collected again at the end; documents may not be copied by any means, such as
photocopying or photographing; no notes may be taken; and the minutes of the
meeting cannot make any mention of the discussion of the item containing
official secrets (Art. 6, Interinstitutional Agreement
between the European Parliament and the Council of 12 March 2014).

Closed reading
rooms are an exception to generally open meetings and discussions of the
European Parliament. This practice emerged with the introduction of rules on EU
official secrets and specifically the Interinstitutional Agreement of
2002 between the European Parliament and the Council concerning European Parliament’s
access to sensitive information in the field of security and defence policy
(see Art. 3 and Annex, second paragraph). The rationale of what this Agreement
called ‘secured room’ was to make sensitive documents available for purposes of
parliamentary oversight without ‘risks’ of public disclosure or possible leaks,
i.e. unauthorised disclosure of documents.

Initially,
this practice was mostly confined to the area of security and defence for
documents classified as official secrets. Yet, with the expansion of rules on
EU official secrets to areas well beyond security and defence to ‘activities in
all areas that require handling classified information’ via a Council Decision on official secrets in 2013, the
use of closed reading rooms by MEPs to access sensitive documents became an
increasing practice.

Closed Oversight

At
first glance, closed reading rooms, or more generally ‘closed oversight’ (as
I have elaborated in-depth in this recent
article), might
seem an inevitable institutional practice when dealing with official secrets
and certainly this is not an issue confined to the EU, but a much wider world
practice of oversight (e.g. see here for a recent report). Yet, the following salient
questions arise:

Is it possible to keep account of closed oversight?

Accountability
does not stop with executive institutions. It is equally important that
oversight actors, such as the European Parliament, have appropriate
institutionalised processes of keeping track of documents that have been
reviewed, that meeting minutes reflect at least in some broad sense what has
been discussed when official secrets are involved, or any other means that
leave a traceable mark of institutional oversight having taken place. As the
current procedure of getting access to official secrets stands (see above
section on ‘background), it seems that keeping (some sort of public) track of
the oversight process is deeply challenging.

Another
disconcerting aspect to closed oversight is the way it has been developed, i.e.
mostly through rules of procedure and inter-institutional agreements. Indeed,
EU institutions in line with primary law have clear prerogatives to make
arrangements for their cooperation and to set out their rules of procedure (see
respectively Art. 295 TFEU, Art. 240(3) TFEU). However, it remains to be more
critically discussed whether this route of designing how oversight will take
place in practice follows the constitutional principle of openness in the EU in
full spirit and to what extent it alters the process of oversight in EU.

Does recent case law offer insights on closed
oversight?

In a
series of recent cases, the CJEU has clarified the relevance, scope and
procedural aspects of institutional access to information by the European
Parliament in the context of international negotiations (see previous EU Law Analysis
blogs here and here). However, case law does not
address the manner in which these documents should be read and importantly, primary
law only refers that accessibility to information is ‘immediately and fully’
(see Art. 218(10) TFEU) with no further details as to how access ought to be
organised.

What about public deliberation?

A crucial
role for the European Parliament as the direct representative of citizens (Art.
10 TEU) is to provide a link between what takes place in Brussels and what
citizens know. But actively creating space for public deliberation and prompting
public debate on issues that are overseen behind closed doors remain yet to be
delivered by the European Parliament.

Spillover Effect Even to Public
Access to Information?

Recently
four MEPs filed a public access request to the European Food Safety Authority
to gain access to unpublished studies determining the carcinogenicity of
glyphosate on basis of which EFSA made its assessments. EFSA was not
immediately open to provide public access to these studies. Remarkably, in its response, EFSA offers a ‘physical reading
room’ for the MEPs to read these studies and reasons that the owners of these
studies seem open to sharing the studies in this manner.

In other
words, the EFSA is offering the MEPs a closed room to read the studies as a
response to a public access request
that should result in making the documents public, not only for these four MEPs
but also for the general public. It should be stressed that the EU public
access to documents regime does not foresee ‘physical reading rooms’ and indeed
that would be contrary even to its rationale of granting the widest possible
public access to documents. It seems that in the eyes of EFSA, a closed reading
room offers a ‘solution’ to the potential unwillingness of the authors of these
studies to disclose the documents. Yet, this possibility is also completely outside
the legal contours of public access to information. Legally, authors of these
studies do not have a veto on whether the studies would be public and certainly
do not have prerogatives to decide how public access to documents should be
organised in practice.

The EFSA
response is ongoing and the four MEPs have still not received access to all
requested documents. Yet, beyond this case, is the practice of closed reading
rooms expanding not only to institutional
access but also to public access
to documents? This is a issue that we should continue to examine more closely.

Tuesday, 27 September 2016

Maria Haag, PhD Researcher, European University Institute (Florence,
Italy) & Michigan Grotius Research Scholar, University of Michigan Law
School (Ann Arbor, Michigan)

Background

Five years ago, the CJEU delivered its infamous Grand Chamber
decision in C-34/09 Ruiz
Zambrano. It held that “Article 20 TFEU precludes national measures
which have the effect of depriving citizens of the Union of the genuine
enjoyment of the substance of the rights conferred by virtue of their status as
citizens of the Union” (para 42, emphasis added). This 'genuine enjoyment'-protection
had two consequences. First, Union citizens could rely on Article 20 TFEU
against their Member State of nationality without having previously made use of
their rights to free movement and thus bypassing the Court's general lack of
jurisdiction in 'purely internal' situations. Secondly, Member States were
precluded from denying a right of residence to third-country national ('TCN')
parents or caretakers of minor citizens of that Member State, as these children
would otherwise be forced to leave the territory of the EU and thus no longer
able to make use of the rights granted by Union citizenship.

Shortly after the delivery of this ground-breaking judgment, the
Court of Justice proceeded to interpret Ruiz
Zambrano very narrowly in a series of cases (C-434/09 McCarthy,
C-256/11 Dereci
and Others, C-40/11 Iida,
C-356&357/11 O.
and S., C-87/12 Ymeraga
and Others, C‑86/12 Alokpa
and Moudoulou and C-115/15 NA)
leading many to wonder about the original significance of the Ruiz Zambrano
decision. In contrast to Ruiz Zambrano, these subsequent cases mostly concerned
the significance of Article 20 TFEU in a host Member State. The Court held that
the applicants fell outside the scope of Article 20, even if they had never
moved to another Member State, i.e. had been born in a Member State other than
their Member State of nationality and had never left. The most recent cases –
C-304/14 CS
and C-165/14 Rendón
Marín – however, Ruiz Zambrano decision, fully address the right under
Article 20 TFEU in the home Member State. On the 13th of September 2016, the
Grand Chamber delivered these two decisions in which it considered the effect of
a criminal record of a TCN parent on his or her derived residence right under
Article 20 TFEU and to what extent this right can be derogated on grounds of
public policy or public security.

C-304/14 CS: facts and judgment

The case in CS concerned a
Moroccan national, who resided in the UK together with her British national
son. In 2012, she was convicted of a criminal offence and given a prison
sentence of 12 months. Following her conviction, she was notified of her
deportation liability. Her subsequent application for asylum was denied. Upon
her appeal, the First-tier Tribunal (Immigration and Asylum Chamber) found that
her deportation would violate her child's rights under Article 20 TFEU. The
Home Secretary was granted permission to appeal this decision before the Upper
Tribunal, which asked the CJEU, under which circumstances the expulsion of a TCN
caretaker of a Union citizen could be permitted under EU law and whether
Article 27 and 28 of the Directive
2004/38 (the ‘citizens’ Directive’, which sets out the main rules on EU
citizens who move to another Member State) had any effect in this case.

In its two-part decision, the Court firstly answered the question
whether a TCN parent of a Union citizen has a derived right of residence in the
home Member State under Article 20 TFEU and, secondly, if such a right can be
limited on grounds of public policy or public security.

The Court first firmly restated its holding in Ruiz Zambrano. It explained that Article 20 TFEU "precludes
national measures which have the effect of depriving Union citizens of the
genuine enjoyment of the substance of the rights conferred by virtue of their
status as Union citizens" (para 26; citing Ruiz Zambrano para 42). Furthermore, this means that "a right
of residence must … be granted to a third-country national who is a family
member of [a minor Union citizen] since the effectiveness of citizenship of the
Union would otherwise be undermined, if, as a consequence of refusal of such a
right that citizen would be obliged in practice to leave the territory of the
European Union as whole" (para 29). CS thus had a derived right of
residence under Article 20 TFEU in her son's home Member State.

Secondly, the Court held that, as a general rule, such a derived
residence right can be derogated for reasons of public policy or public
security: "where the exclusion decision is founded on the existence of a
genuine, present and sufficiently serious threat to the requirements of public
policy or of public security … that decision could be consistent with EU
law" (para 40, emphasis added). However, a deportation decision cannot be
made "automatically on the basis solely of the criminal record of the
person concerned" (para 41). Thus the UK legislation at issue, which
obliges the Home Secretary to make a deportation order of any non-national who
is sentenced to a period of imprisonment of 12 months or more, establishes
"a systematic and automatic link between the criminal conviction of a
person … and the expulsion measure" (para 44) and therefore violates EU
law. Instead, it is for the national courts to weigh up "the personal
conduct of the individual concerned, the length and legality of his residence
on the territory of the Member State concerned, the nature and gravity of the
offence committed, the extent to which the person concerned is currently a danger
to society, the age of the child at issue and his state of health, as well as
his economic and family situation" (para 42, emphasis added).

Furthermore, derogations for reasons of 'public policy' or 'public
security' must be interpreted strictly and decisions are subject to review by
the EU institutions (para 37). Lastly, and most notably, the assessment of the
individual situation must take account of the principle of proportionality and
the rights protected in the Charter of Fundamental Rights of the European Union
('CFREU'), especially Article 7 on the right to respect of private and family
life and Article 24(2) on the obligation of consideration of the child's best
interests (paras 48 and 49).

C-165/14 Rendón Marín: facts and judgment

The facts in Rendón Marín
are very similar to the ones in CS and essentially raise the same question, presumably
why the Court decided these cases on the same day and why Advocate General
Szpunar did not give separate opinions in these cases, but combined the two. Rendón
Marín concerned a Colombian national father, who lived in Spain together with
his Spanish national son and his Polish national daughter. His application for
a residence permit was rejected due to his criminal record. The crucial
difference between the facts of the two cases is that Mr Rendón Marín has a
Union citizen daughter who lives in a host Member State and a son who lives in
his home Member State. There thus exists a cross-border element in the
situation of his daughter, but not in his son's (For further discussion on the
cross-border element, see C-200/02 Zhu
and Chen, especially para 19.).

The part of the Court's decision concerning the son's circumstances
– a Spanish national in Spain – is almost identical to the Court's judgment in CS. In fact, some of the paragraphs can
be found in exactly the same wording in both decisions (the two cases also had
the same rapporteur, Allan Rosas). Interestingly, the Court in Rendón Marín mentioned the possibility
of moving to Poland, as this is the Member State of nationality of Mr Rendón
Marín's daughter. Whilst the Court noted the applicant's objection that the
family had no ties to Poland, it did not go into this discussion. (See, in
contrast, footnote 109 in Advocate General Szpunar's Opinion in CS and Rendón Marín. For more on this, see also
Advocate General Wathelet's Opinion in NA,
paras 112-117.) Here the Court simply holds that "it is for the referring
court to check whether … the parent who is the sole carer of his children, may
in fact enjoy the derived right to go with them to Poland and reside with them
there" (para 79, citing Alokpa and
Moudoulou paras 34-35). The Court therefore did not deny that moving to
Poland could be a possible solution in case of the father's deportation from
Spain.

As for the legal status of the daughter, the Court held that, as a
Polish national and Union citizen, she could rely on Article 21 TFEU and the Directive
2004/38 to grant her a right of residence in Spain (para 44). Furthermore, the
Court stated that if the daughter fulfils the conditions laid down under
Article 7(1) Directive 2004/38 (i.e. having sufficient resources and
comprehensive health insurance) then the derived right of residence of Mr
Rendón Marín, her father and sole caretaker, cannot be refused (para 53).
Whilst this derived right of residence can be limited for reasons of public
policy or public security (para 57), EU law precludes such limitations on
"grounds of a general, preventive nature" (para 61). Instead, it is
for the national courts to do a similar weighing-up exercise as laid out in CS (see Rendón Marín, paras 59-66). Derogations from derived rights of
residence on the basis of Article 20 TFEU and Article 21 TFEU thus presumably have
to withstand the same test.

Comment

After a longer period of silence on this issue, the Court in these
cases seems at the very least willing to explore the scope of Ruiz Zambrano. (The Court should soon
decide another case, Chavez-Vilchez,
which raises some further important questions about the scope of that judgment).
The two recent judgments, whilst they in some sense appear to diminish the
scope of Ruiz Zambrano even further,
can also be seen as a restatement of the fundamental significance of the
original judgment.

The cases following the Ruiz
Zambrano decision made it very clear that protection under Article 20 TFEU
is only applicable to a very small number of people in "very specific
situations" (Rendón Marín para
74; CS para 29): essentially only to minors
who reside with their TCN parents in their home Member State. CS and Rendón Marín both confirm this, but also clarify that a very high
level of protection is granted to those Union citizens who fall within the
scope of the 'Ruiz Zambrano-protection'.
In fact, the substantive protection against expulsion is equivalent to that of
EU citizens (and their family members) who move to another Member State (the
Court refers to concepts found in the EU citizens’ Directive and its
predecessors, as well as relevant case law), although it is not clear if the
same procedural protection applies.

The Court certainly does not exclude the possibility that "in
exceptional circumstances" (CS para
50) a criminal and dangerous parent who poses a threat to a Member State's
public policy or public security could be deported. Even if this means that his
or her Union citizen children are forced to leave EU territory and thus
deprived of the genuine enjoyment of their EU citizenship rights. Nevertheless,
the Court insists on a very stringent test before such a decision can be taken.

Most notably, the Court refers to the EU's Charter of Fundamental
Rights and stresses the fact that a deportation decision needs to take account
of Article 7 and Article 24(2) of the Charter (see CS paras 36 and 48; Rendón
Marín paras 66 and 85). In Dereci,
the Court had previously held that "if the referring court considers …
that the situation of the applicants in the main proceedings is covered by
European Union law, it must examine whether the refusal of their right of
residence undermines the right to respect for private and family life provided
for in Article 7 of the Charter" (Dereci,
para 72). In that case the Court had decided that the circumstances fell
outside the scope of EU law, and that it was therefore beyond its jurisdiction
to consider a violation of the Charter. In both CS and Rendón Marín, the
Court found that the applicants' circumstances fell within the scope of EU law
and thus that the Charter applied.

It is also interesting to compare the protection granted in C-135/08
Rottmann
against the deprivation of the legal status of Union citizenship altogether and
the protection granted in CS and Rendón Marín against being deprived of
the genuine enjoyment of the Union citizenship rights by means of a parent’s
expulsion to a non-EU state. Whereas in Rottmann,
the Court held that a decision to withdraw someone's nationality needs to
respect the principle of proportionality (Rottmann,
para 59), in CS and Rendón Marín it established a list of
criteria that need to be observed. Curiously, the Rottmann-test therefore appears to be narrower than the one
established in CS and Rendon Marin, even if the potential
outcome in circumstances like Rottmann,
i.e. statelessness, might be much more serious for the individual concerned.

In its decision in CS, the
Court cites the European Court of Human Rights (ECtHR) judgment in Jeunesse v the Netherlands.
The EU Court states in paragraph 49:

"[A]ccount is to be taken of the child's
best interests when weighing up the interests involved. Particular attention
must be paid to his age, his situation in the Member State concerned and the
extent to which he is dependent on the parent (see, to this effect, ECtHR, 3
October 2014, Jeunesse v. the Netherlands, CE:ECHR:2014:1003JUD001273819,
§118)."

Jeunesse v. the Netherlands, which was decided by the Strasbourg court in 2014, concerned a
Surinamese national, who lived with her Dutch national husband and children in
the Netherlands without a valid residence permit. The applicant argued that the
refusal to allow her to reside in the Netherlands infringed her right to
respect of her family life under Article 8 ECHR. The facts of this case are
very similar to the ones in Dereci,
in which the Court of Justice held that such a denial of residence right did
not conflict with EU law. The ECtHR, however, came to the conclusion that the
Dutch authorities had failed "to secure the applicant's right to respect
for her family life as projected by Article 8 of the Convention" (Jeunesse v the Netherlands, §122).

So what does the reference to this judgment mean? First and
foremost, the CJEU clarifies and stresses the utmost importance of taking
account of the children's best interests in these deportation decisions.
Secondly, it signals the Court's commitment to taking the fundamental rights of
those who fall within the Ruiz Zambrano-protection
very seriously.

Finally, the fact that the Court treats the situation of the
daughter and the son separately in Rendón
Marín reaffirms the Court's findings in previous cases that a Union citizen
in a host Member State first has to rely on Article 21 TFEU before Article 20
can be applied. In the NA judgment,
which the Court delivered at the end of June 2016, it held that one first has
to examine whether the citizen and their TCN caretaker have a right of
residence under secondary EU law. Only if there is no such right, can Article
20 TFEU apply.

The NA case concerned a
Pakistani national mother who lived in the UK with her German national children
where she was refused a right of residence. The Court decided that because it
had already held that both the children and their TCN mother had a right of
residence in the host Member State under Article 12 of Regulation
No. 1612/68 (paras 52-68), which guarantees children of current and former
workers the right to access to education in the host Member State, with corollary
residence rights for those children and their parents (for more, see CJEU
decisions in C-480/08 Teixeira
and C-310/08 Ibrahim).
Article 20 TFEU did not confer a right of residence in the host Member State.
It is clear that the protection under Article 20 TFEU is one of last resort.
Whilst the Court in NA and Rendón Marín does not directly rule out
the possibility that the Ruiz Zambrano-protection
might apply in a host Member State, it now almost seems impossible. It appears
that that protection can only be granted by the home Member State.

Monday, 26 September 2016

In wake of the UK’s EU membership
referendum result,
people from all walks of life are wondering what will happen next. While a big
uncertainty looms over the political questions surrounding the process of the
UK’s exit from the EU, the repercussions go far beyond the UK – and some of those wondering “what next” are
likely overseas victims of human rights abuses by British corporations. The
question remains as to what happens to all the EU law that either the UK has
transposed into its legal order via acts of parliament, or that have direct
application in the UK, such as EU Regulations.

Brussels
I Regulation (Recast) is one of many such EU law instruments. It prescribes
the rules on jurisdiction of member state courts, as well as the rules on the
recognition and enforcement of judgments in civil and commercial matters within
the EU. It has been predicted
that the UK's adherence to the Brussels I regime “is likely to be significantly
modified, if not entirely replaced, in the event of Brexit.” The authors of
that piece outline the different scenarios on the fate of the English rules on
civil jurisdiction post-Brexit. The course chosen may have an impact on the
ability of human rights victims overseas to bring suit against multinational
enterprises (MNEs) in UK courts.

Jurisdiction over Civil Liability Claims against Multinationals domiciled
in England

Rights advocates are increasingly
bringing lawsuits
in the global north to hold MNEs accountable for human rights harm caused by
their overseas subsidiaries. Among the reasons for pursuing the MNE in its
“home” state (the state where they are domiciled – see Article 60 of Brussels
I) are the existence of a dysfunctional legal system in the host state (place
where the harm occurred) and/or a defunct or underfunded subsidiary. England is
a popular jurisdiction for bringing such suits against UK domiciled MNEs. It is
home to many multinationals and it offers advantages for creative litigation.
Victims and their lawyers generally seek reparations from the parent entity on
the basis of common law tort
principles. While rights defenders are eager to hold parent companies
accountable for harm inflicted by their subsidiaries, the legal landscape in
the global north is fraught with obstacles
to holding parent companies liable. Among them are the rules on civil
jurisdiction.

In England, the forum non conveniens doctrine (FNC) used
to be a major
challenge to bringing suit against an MNE domiciled in England for harm
caused overseas by its subsidiaries. The FNC allows English courts to refuse to
exercise jurisdiction over a case if another forum is clearly better suited to
adjudicate the case, due to for instance location of evidence and witnesses. A
number of cases brought in England were protracted due to a battle over FNC.
Claimants had to demonstrate substantial denial of justice in the host state
legal system in order to convince English courts to exercise jurisdiction (see Connely
v RTZ Corporation, Lubbe
v Cape Plc).

Article 2 of Brussels I and its
interpretation by the Court of Justice of the EU (CJEU) in Owusu
v Jackson blocked the use of the FNC doctrine by English courts in
civil liability suits filed against MNEs domiciled in England. According to
Article 2 ‘persons domiciled in a Member State shall, whatever their
nationality, be sued in the courts of that Member State.’ There is no
indication here as to whether this rule would prevail if the lawsuit concerns
events that occurred or harm suffered overseas (i.e. outside the European
Union). In Owusu v Jackson, the CJEU
held that Article 2 precludes a member state court from "declining to exercise jurisdiction on the ground that a
court in a non-EU would be a more appropriate forum" and thus jurisdiction
shall be exercised over the UK domiciled MNE even if the dispute has certain
connections with a state outside the EU.

Years need not be wasted fighting a jurisdiction battle

Article 2, read together with Owusu, brought an end to the protracted
litigation over whether a lawsuit against an MNE domiciled in England should be
adjudicated by English courts or the courts of the host state. Admittedly,
adjudicating the dispute before English courts does not guarantee the liability
of the parent company. That depends on whether the facts of the case warrant
holding the parent liable under the law applicable to the substance of the case
(which is likely to be the law of the country where the harm occurred – see
Article 4 of the Rome
II Regulation).

Nevertheless, the defeat of the
FNC defence was not in vein. Even though we are yet to see a ruling that holds
the parent company liable for harm caused by an overseas subsidiary, lawyers
continue filing strategic cases with English courts with the confidence that
they would not lose years battling an FNC challenge. MNEs are less able to
protract litigation through jurisdictional questions, draining victims of the
funds necessary to support the litigation. Brussels I gives victims a real
chance to plead their case before home state courts, and thus attract more
public attention to the alleged wrongdoings of MNEs that sometimes paint a
‘socially responsible’ picture to their consumer base in the global north.
Finally, the concern of fighting such a claim on its substance pushes major MNEs
like Royal Dutch Shell to offer
out of court settlements to victims for amounts much greater than they
would have offered in the absence of such concern. Although such settlements
prevent the development of legal precedent in this area, they provide much
needed relief to individual victims.

If the UK leaves the EU and no
longer complies with Brussels I, without a post-exit deal between the two
entities that incorporates equivalent provisions, the FNC defence is likely to
be resurrected in business and human rights litigation against MNEs domiciled
in England. This would be a big step back for access to justice in England for
overseas victims of business abuse.

Article 50 was added to the
Treaty on European Union (TEU) by the Treaty of Lisbon. It forms the legal basis
for withdrawal from the European Union (EU). In other words, it confirms the
possibility of withdrawal from the EU that many academics and legal
practitioners believe also existed before the entry into force of the Treaty of
Lisbon. Furthermore, Article 50 TEU regulates the withdrawal procedure. It
might, however, be argued that Article 50 TEU is incompatible with the nature
of the EU, as well as that it undermines loyalty of the Member States towards
the idea of European Integration. What is more, one may pose the following
question: what kind of a withdrawal mechanism is desired?

The Nature of the EU

It could be argued that the
inclusion of the withdrawal clause in TEU is incompatible with the nature of
the EU. There is no doubt that special characteristics of the EU legal order,
which were defined by the Court of Justice of the European Union (CJEU), inter
alia, in Costa v ENEL and Commission v France (Case 7/71), have
affected the nature of the EU. What is more, the CJEU has consistently stressed
in its judgments two key aspects of the nature of the EU, namely the unlimited
duration of the founding treaties and the irreversible nature of the
integration process.

In accordance with Article 53 of
TEU, the TEU is concluded for an unlimited period. The Treaty on the
Functioning of the European Union (TFEU) contains an identical clause. As a
result, one may pose the following question: is Article 50 TEU incompatible with
Article 53 TEU and Article 356 TFEU? The starting point is an interpretation of
the wording of Article 53 TEU and Article 356 TFEU. It appears that the phrase
‘an unlimited period’ only applies to the unlimited duration of the founding Treaties.
In other words, Article 53 TEU and Article 356 TFEU cannot be construed in such
a way as to require the permanence of membership of the EU and consequently
exclude the possibility of withdrawing from the EU. An alternative
interpretation might be that if TEU and TFEU are concluded for an unlimited
period, then they must be permanent. If they are permanent, then there must be
no legal way of withdrawing from the EU.

However, the alternative
interpretation of Article 53 TEU and Article 356 TFEU suffers from two
drawbacks. Firstly, it does not distinguish between the permanence of an
international organization and membership of such an international
organization. To put it more simply, the international organization itself can be
permanent even if its treaty contains an exit clause. Secondly, one must
remember that the Member States are the ‘masters of the treaties’. As a result,
they have the power to introduce new treaties, as well as to amend the existing
treaties, including the procedural objection that the CJEU has no jurisdiction
to strike down ordinary treaty amendments.

As far as the irreversible nature
of the integration process is concerned, it should be emphasized that the current
situation in the EU is not directly comparable to that between the Member
States 40 or 50 years ago, but there is no denying the fact that participation in
the European integration process has always been voluntary. Membership of the
EU is the most advanced form of participation in the European integration process.
If any European country does not wish to fully participate in the European
integration process, then it can choose one of the other forms of
participation; for example, such a country can conclude an association
agreement with the EU, join the European Economic Area (EEA) or convince EU to
adopt a bilateral relationship similar to the EU-Swiss model. This leads the
conclusion that the possibility of withdrawal from the EU is compatible with the European
integration process. If the possibility of exiting the EU is not incompatible
with the European integration process, then the idea of its irreversible nature
is no longer based on convincing arguments. Moreover, one ought remember that,
pursuant to Article 48(2) TEU, proposals for the amendment of TEU/TFEU may
serve to reduce the competences conferred on the EU.

Loyalty of the Member States

The next issue that has to be
addressed is loyalty of the Member States towards idea of European integration.
The starting point is the concept of loyalty formulated by Albert O. Hirschman,
a Germany-born development economist. In accordance with Albert O. Hirschman’s
concept, loyalty is the extent to which members of an organization are willing
to trade off the certainty of an exit against the uncertainties
of a significant improvement in the deteriorated product. To put it more
simply, if the organization has demonstrated some decrease in quality or
benefit to its members, then they can either withdraw from a relationship
(exit) or attempt to repair the damage (for example, by suggesting important
changes) done to the relationship (voice).

From a practical point of view,
loyalty persuades members of the EU to use a voice rather than an exit.
Moreover, loyalty provides hope that reforms can be pushed through from within.
Thus, loyalty and the voice make each other stronger. On the other hand, the
existence of Article 50 TEU undermines loyalty of the Member States towards the
idea of European integration.

There is no doubt at all that the
inclusion of the withdrawal clause in TEU makes withdrawal from the EU legally
available and practically feasible. As a consequence, from the point of view of
Eurosceptics, the criticism, for example, of EU red tape, of free movement of
persons, of regulatory procedures, of additional costs, and of a transfer of
huge amount of power to the EU is designed to make a case for withdrawal rather
than to suggest important changes.

Withdrawal Negotiations

It has been suggested that the
withdrawal clause advantages the EU and its institutions. In other words, it
could be argued that Article 50 TEU puts a withdrawing Member State, from the
very outset of withdrawal negotiations, in a worse position than the EU and its
institutions. There are a few strong arguments in favour of this view.

Firstly, in accordance with the
withdrawal procedure laid down in Article 50 TEU, the EU and its institutions will
set out a timetable for the withdrawal negotiations. Secondly, it should be
emphasized that the withdrawing Member State will not sit at the same table
with the other Member States when they are defining their negotiating position.
The process of negotiating a withdrawal agreement can be divided into two
phases. During the first phase all the Member States except the withdrawing Member
State will prepare, taking into consideration proposals submitted by the
latter, a draft withdrawal agreement, whereas during the second phase that
draft withdrawal agreement will be given to negotiators representing the withdrawing
Member State so that they can consider and accept or reject it.

Thirdly, any sort of future trade
relationship between the EU and the withdrawing Member State will have to be
put in a separate trade agreement in order to make the withdrawal negotiations
less complex and politically challenging. That trade agreement can be
negotiated alongside the withdrawal agreement or after a formal departure from
the EU. EU Trade Commissioner Cecilia Malmstrom has suggested, in relation to a
British exit from the EU, that the United Kingdom (UK) cannot begin negotiating
a trade deal with the EU until after it has left. It is most unlikely that
political leaders of the withdrawing Member State would decide not to conclude
any trade agreement with the EU. Lastly, it should be stressed that the members
of the European Council as well as of the Council of the European Union
representing the withdrawing Member State will not participate in the discussions
and decisions of the former and the latter concerning it (Article 50(4) TEU).

The withdrawal negotiations are
of crucial importance from the perspective of the withdrawing Member State as
well as the EU itself. As a consequence, they should cover, in the context of
managing the transition, various issues. For instance, the withdrawal
negotiations should include the following: (i) status of EU citizens in the
withdrawing Member State and citizens of the latter in the EU; (ii) unspent EU
funds due to regions and farmers of the withdrawing Member State; (iii) arrangements
for the closure of EU agencies headquartered in the withdrawing Member State; (iv)
arrangements regarding trade with the EU during the period of transition; (v)
transition arrangements for an exit from EU free trade agreements with third
countries and from other international agreements; (vi) employment law issues
relating to citizens of the withdrawing Member State who are on the payroll of
the EU; (vii) recognition of judgements of the CJEU; and (viii) arrangements
regarding CJEU judges and an Advocate General (if there is one) from the withdrawing
Member State.

The aforementioned arguments lead
to the conclusion that Article 50 TEU advantages
the EU and its institutions from the very outset of the withdrawal
negotiations. Hence, the question is: what kind of a withdrawal mechanism is
desired? In theory, there are three withdrawal mechanisms, namely: (i) state
primacy; (ii) federal primacy; and (iii) federal control. Pursuant to the state
primacy mechanism, a state has an absolute, immediate and unilateral right of
withdrawal. The adoption of the state primacy mechanism shows a lack of
commitment between the parties. When it comes to the federal primacy mechanism,
an act of withdrawal is legally impossible in accordance with the principle ‘once
a member, always a member’. Unlike the latter, the federal control mechanism
provides for an act of withdrawal, which requires the approval of a withdrawing
state as well as of
those states left behind. In practice, in order to adopt a desired withdrawal
mechanism, the EU institutions and the Member States would have to define what
their interests are. They might be the same or overlapping. Further, the
upcoming withdrawal negotiations between the UK and the EU (and their outcome)
would have to be taken into account.

Conclusion

Article 53 TEU and Article 356
TFEU cannot be interpreted in such a way as to exclude the possibility of
leaving the EU. A British departure from the EU will surely undermine loyalty
of the Member States towards the idea of European integration. What is more, most
controversial questions relating to withdrawal negotiations should be answered before
the conclusion of a withdrawal agreement between the UK and the EU. However,
according to Giuliano Amato, a former prime minister of Italy, Article 50 TEU
was never actually meant to be used. It remains to be seen whether he is right.

Further reading:

Athanassiou Phoebus, ‘Withdrawal
and Expulsion from the EU and EMU’ (European Central Bank, Legal Working Paper
Series 10, December 2009)

Friel Raymond, ‘Providing a
Constitutional Framework for Withdrawal from the EU: Article 59 of the Draft
European Constitution’ (2004) 53 ICLQ

Hillion Christophe, ‘Accession
and Withdrawal in the Law of the European Union’, in Anthony Arnull and Damian
Chalmers (eds), ‘The Oxford Handbook of European Union Law’ (OUP, Oxford 2015)

Hofmeister Hannes, ‘’Should I
Stay or Should I Go?’ – A Critical Analysis of the Right to Withdraw from the
EU’ (2010) 16 Eur LJ

Montero Carlos Closa (ed), ‘Troubled
Membership: Dealing with Secession from a Member State and Withdrawal from the
EU’ (European University Institute Working Paper RSCAS 2014/91)

Sunday, 25 September 2016

One of the features of the response to the euro area crisis
has been the resort to intergovernmental arrangements that largely avoid
judicial and parliamentary control at the EU level. The paradigmatic example
has been the European
Stability Mechanism (ESM), created by the euro area countries in order to
provide financial assistance to countries in difficulties, subject to
conditionality. The ESM was created through the adoption of an international
agreement, the ESM Treaty; it is an intergovernmental mechanism created outside
the framework of the EU, but with significant links to it. Most importantly,
the ESM ‘borrows’ two EU institutions, namely the Commission and the European
Central Bank (ECB), in order to carry out its functions. (Those two bodies,
along with the International Monetary Fund, constitute the so-called ‘Troika’
which oversees the controversial bail-out processes).

The nature of the ESM and the way it operates raises
important questions regarding judicial protection. As mentioned above, ESM
financial assistance is granted after strict conditions have been negotiated
and agreed in a Memorandum of Understanding. These conditions typically require
the Member State in receipt of assistance to adopt ‘austerity’ reforms that
have an impact on its citizens—understandably, these citizens may wish to
challenge the validity of these conditions, often questioning their compliance with
the EU Charter of Fundamental Rights.

In Pringle, the
Court stated that Member States were not within the scope of application of the
Charter of Fundamental Rights when creating the ESM, or presumably when acting
within its framework. This meant that their actions could not be reviewed for
accordance with the Charter (although they can still be reviewed in national
courts for compliance with purely national law, or in the European Court of
Human Rights for compliance with that treaty). This, however, left open the
question of whether, or in what form, the Charter applied to the EU
institutions—the Commission and the ECB—when operating under the ESM. This is
the question that the Court of Justice had to answer in the Cyprus bailout
cases (Ledra
AdvertisingandMallis).

Cyprus wrote to the Eurogroup in 2012 to request financial
assistance, and it was in receipt of ESM assistance from 2013 until 2016. The
country had to recapitalize its biggest bank and wind down its second. The
Memorandum of Understanding stipulated that bondholders and depositors would
bear part of the cost. As a result, the applicants suffered substantial
financial losses and turned to the EU courts: first to the General Court, and
then on appeal to the Court of Justice. They were challenging the validity of
the Memorandum of Understanding (Ledra
Advertising), as well as a Eurogroup statement that referred to the conditions
attached to the bailout (Mallis);
they also asked for damages. In their view, the involvement of EU
institutions—the Commission and the ECB—in the adoption of these measures meant
that it should be possible for individuals to challenge their validity at the
EU level; they also argued that these institutions’ involvement should trigger
the EU’s non-contractual liability.

The General Court dismissed all complaints as inadmissible.
It decided that neither the Memorandum of Understanding nor the Eurogroup
statement could be the subject of an action for annulment; the former because
it is not a measure adopted by an EU institution, the latter because it is not
intended to produce legal effects with respect to third parties. It considered
that the involvement of the Commission and the ECB in the adoption of these
measures was not enough to attribute authorship to them, or to trigger the
non-contractual liability of the Union.

The Court of Justice agreed, in part, with the General Court:
neither the Eurogroup statement (Mallis)
nor the Memorandum of Understanding (Ledra
Advertising) can be the object of an action for annulment. The Court
insisted again on its finding in Pringle
that ESM acts fall outside the scope of EU law; the involvement of the
Commission and the ECB does not change this, and is not enough to attribute
authorship of these acts to them for the purposes of judicial review.

Yet the Court goes on to reveal a twist in Ledra Advertising: even if they are not
its authors, the involvement of the Commission and the ECB in the adoption of an
ESM Memorandum of Understanding may be unlawful, and thus able to trigger the
non-contractual (damages) liability of the EU. The Commission, in particular,
retains its role as ‘guardian of the Treaties’ when acting within the ESM
framework. As a result, the Commission should not sign an ESM act if it has any
suspicions as to its accordance with EU law, including the Charter.

The Court repeated the usual rules for the EU institutions to
incur non-contractual liability: (a) they must have acted unlawfully, (b)
damage must have occurred, and (c) there must be a causal link between the
unlawful act and the damage. Not just any unlawful act gives rise to damages
liability: there must be ‘a sufficiently serious breach of a rule of law
intended to confer rights on individuals’. While the right to property
enshrined in the Charter was a ‘rule of law intended to confer rights on
individuals’, that right is not absolute: Article 52 of the Charter allows
interference with some Charter rights. Applying that provision, the Court came
to the conclusion that the measures contained in the Memorandum did not
constitute a disproportionate and intolerable interference with the substance
of the applicants’ right to property, given ‘the objective of ensuring the
stability of the banking system in the euro area, and having regard to the
imminent risk of [greater] financial losses’.

So individuals can challenge the EU institutions’ bailout
actions by means of an action for damages (non-contractual liability), but not
by means of an annulment action. It is useful to remember that the rules on
access to the EU courts as regards those two types of remedy are quite
different. The standing rules are more liberal for damages actions: it’s
sufficient to allege that damages have been suffered as a result of an unlawful
act by the EU, whereas it’s much harder to obtain standing to bring annulment
actions. The time limits are more liberal too: individuals have five years to
bring damages cases, but only two months to bring actions for annulment. On the
other hand, the threshold to win cases is much higher for damages cases: any unlawfulness by the EU institutions
leads to annulment of their actions, but only particularly serious illegality
gives rise to damages liability.

In any case, we know from the Court’s ruling that breaches of
at least some Charter provisions within the ESM framework could potentially
give rise to damages liability. In the anti-austerity context, it should be
noted that social security and many social welfare claims fall within the scope
of the right to property, according to the case law of the European Court of
Human Rights. In the case at stake, the Court did not discuss the
proportionality of the interference with the applicant’s rights at much—or
any—length, but it is clear that future applicants will face an uphill
struggle.

On the whole, Ledra
Advertising is a welcome change from other cases concerning measures
adopted as a result of a bailout, where the Court’s approach had been to deny
the existence of any link to EU law. Indeed, it seems unavoidable that the EU
should bear the appropriate degree of responsibility when allowing its EU institutions
to operate within the ESM framework. This is not to say that it will be easy
for individuals to be awarded damages; as this case illustrates, the threshold
is extremely high. Moreover, while a significant aspect of the role of the EU
institutions within the ESM has been clarified, questions remain concerning the
judicial and democratic accountability of this mechanism. Overall, however, Ledra Advertising is a step in the right
direction.

Thursday, 22 September 2016

The second paragraph of Article
24(1) Treaty on the European Union explains that “the Common Foreign and
Security Policy (CFSP) is subject to specific rules and procedures”, and ends
with the rather explicit sentence “the Court of Justice of the European Union
shall not have jurisdiction with respect to these provisions”.

Lawyers are currently discussing
whether the sentence “the CJEU shall not have jurisdiction” means “the Court has
some jurisdiction”. Seriously. AG Wahl elegantly phrased it this way: “The main
question could be framed as follows: does the exclusion from the CJEU’s
jurisdiction cover, in principle, all CFSP acts or only certain categories of
CFSP acts?” (Case C‑455/14 P H v
Council and CommissionAG
Opinion, Par 52).

The question is of fundamental
constitutional importance because an answer will enable lawyers to understand
with clarity what EU foreign policy acts are excluded from the Court’s judicial
review – a legal issue that the Court has not yet had the opportunity to
adjudicate upon. While Art 19 TEU confers on the Court jurisdiction to ensure
that in the interpretation and application of the Treaties the law is observed,
Article 24, as recalled, introduces an exception. The scope of this exception,
however, has not been fixed. In Case
C- 658/11 the Court said that the exception “must be interpreted narrowly”
because it introduces an exception from a general rule (par 70). In Opinion
2/13 (on ECHR accession), it only concluded, without further specification,
that “as EU law now stands, certain acts adopted in the context of the CFSP
fall outside the ambit of judicial review by the Court of Justice” (par 252). To
further complicate the issue, however, Article 24 TEU also introduces an
exception to the exception: the Court has jurisdiction to monitor compliance
with Article 40 TEU (the division between foreign policy and other EU measures)
and to review the legality of sanctions.

So, when does the Court of
Justice of the European Union (CJEU) have jurisdiction? Two cases may offer
guidance with respect to this issue. One case, H
v Council and Commission, was decided by the Court in July, and another,
Rosneft, is currently pending.

H v Council

In H, an Italian magistrate sought
annulment, before the General Court (Order
in H v Council and Others, T‑271/10),
of the decision of a Head of an EU Mission established under CFSP. The
contested decision concerned the transfer of H, a seconded Legal Officer of the
EU Police Mission in Sarajevo, to the post of Prosecutor in another regional
office of the same country. The General Court (GC) held that it lacked
jurisdiction to hear the complaint and therefore found that the action was
inadmissible. The GC reasoned that the exclusion of jurisdiction under Art
24(1) TEU only encounters two exceptions: monitoring compliance with Article 40
TEU (ie the division of competence between CFSP and non-CFSP external measures)
and the review of the legality of sanctions under the second paragraph of
Article 275 TFEU.

The General Court took the view
that the appellant’s situation did not fall under one of the exceptions to the
general rule that EU Courts do not have jurisdiction in CFSP matters (it was
not, therefore, one of the two “exceptions to the exception”). The General
Court considered that the contested decisions were adopted by the Head of
Mission pursuant to powers that had been delegated to him by the Italian
authorities. It thus concluded that it was for Italian courts to review the
legality of the contested decisions and to hear the action for damages. It
finally added that, should the Italian court having jurisdiction consider the
contested decisions unlawful, it could make that finding and draw the necessary
conclusions, even with respect to the very existence of those decisions.

The applicant appealed the
decision before the ECJ. Applicant, Council, and Commission all wanted to set
aside the GC’s order, albeit each for different reasons, which will be briefly
outlined below with regards to the issue of the extent of the Court’s
jurisdiction on CFSP matters.

The position of the Applicant

The Applicant took the view that
the exclusion of the Court’s jurisdiction does not cover merely administrative
measures (such as the decision at stake in the present case) but only the acts
provided for in Article 25 TEU: general guidelines, decisions on actions and
positions to be taken by the EU (and implementation thereof), and acts of
systemic cooperation between Member States

The position of the Council

Par 32 of the Advocate General opinion
explains that “The Council is of the view that the statement of reasons in the
order under appeal does contain two legal errors. First, in deciding to
relocate H, the Head of Mission did not exercise powers delegated to him by the
Member State of origin, but by the competent EU institution (the Council
itself). Second, the national court hearing the case does not have the power to
annul the act challenged. Nevertheless, those errors do not — in the
opinion of the Council — invalidate the conclusion reached by the General
Court”

The position of the Commission

The Commission argued that the Court
lacks jurisdiction only on acts that are “expression of sovereign foreign
policy”, thus leaving the Court empowered, for example, to review the
lawfulness of (a) acts of implementation, or (b) adopted in the framework of
the CFSP when the alleged invalidity stems from a possible infringement of non-CFSP
provisions. The Commission took the view, nonetheless, that the contested
decision was not an implementing act.

The findings of the Court

Somewhat unsurprisingly, the
Court reversed the order of the GC and found that the circumstance that the
decision was a CFSP measure “does not necessarily lead to the jurisdiction of
the EU judicature being excluded” (par 43).

The Court interpreted the
exclusion of jurisdiction very narrowly. It gave a systematic reading of the
general provisions of EU law (Article 2) and of CFSP (Articles 21 and 23
TEU) to recall that the EU is founded, in particular, on the values of equality
and the rule of law (
Segi and Others v Council; Opinion
2/13). It stated that “The very existence of effective judicial review
designed to ensure compliance with provisions of EU law is inherent in the
existence of the rule of law (Schrems)” (par 41).

In the current case, the Court
considered that the decision of the Head of Mission was subject to legal
scrutiny because under Article 270 TFEU the EU judicature has jurisdiction to
rule on all actions brought by EU staff members having been seconded to the
EUPM. They remain subject to the Staff Regulations during the period of
their secondment to the EUPM and, therefore, fall within the jurisdiction of
the EU judicature, in accordance with Article 91 of those regulations
(even though H was seconded by a Member State, the two situations were
considered similar). The decision of the Head of Mission was considered to be
merely “staff management”.

Therefore, the Court concluded,
“the scope of the limitation, by way of derogation, on the Court’s
jurisdiction, which is laid down in the final sentence of the second
subparagraph of Article 24(1) TEU and in the first paragraph of
Article 275 TFEU, cannot be considered to be so extensive as to exclude the
jurisdiction of the EU judicature to review acts of staff management relating
to staff members seconded by the Member States the purpose of which is to meet
the needs of that mission” (par 55).

The ECJ concluded that “[the]
jurisdiction stems, respectively, as regards the review of the legality of
those acts, from Article 263 TFEU and, as regards actions for
non-contractual liability, from Article 268 TFEU, read in conjunction with
the second paragraph of Article 340 TFEU, taking into account
Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights
of the European Union” (par 58). It therefore referred the case back to the GC.

Rosneft

A similar question recurs in Rosneft,
the first request ever for a preliminary ruling on a CFSP act, currently
pending before the Court. The case stems from a Russian gas company, Rosneft,
challenging sectorial measures (not target sanctions) prohibiting EU natural or
legal persons, from engaging in contractual relations with certain Russian
state-owned companies and banks, and from providing such companies and banks
access to financial markets.

The AG believes that the measure
can be reviewed if it meets these cumulative two conditions: if (a) it relates
to Articles 23 to 46 TEU (the foreign policy rules) and or EU acts adopted
on the basis of those provisions; and if (b) its substantive content also falls
within the sphere of CFSP implementation.

The first condition is derived,
for Wathelet, from the consideration that the last sentence of the second
subparagraph of Article 24(1) TEU excludes the Court’s jurisdiction only
‘with respect to these provisions’, and the reference thus made is to Chapter 2
of Title V of the EU Treaty, entitled ‘Specific provisions on the common
foreign and security policy’, of which Article 24 forms part.

In the AG’s opinion, in
particular, the court should have jurisdiction to hear actions for annulment
and preliminary rulings on decisions providing for restrictive measures against
natural or legal persons adopted by the Council on the basis of Chapter 2 of
Title V of the EU Treaty – and not, therefore, regulations implementing them.
For the AG, therefore, the Court has jurisdiction, but the challenged decision,
to the extent that it is directly addressed to Rosneft, is not invalid. The
very long opinion explains in detail why, but here we limit the scope of the
analysis to the question on jurisdiction.

Comment

Judicial protection and uniformity of interpretation of EU law

The decision of the ECJ in H should be welcomed because it avoids
the potential deterioration of the protection of fundamental rights which would
derive from each national court being able to monitor CFSP decisions in the
absence of a centralised mechanism. If national Courts had jurisdiction when
the CJEU does not, this might lead to diverging and potentially even
conflicting interpretations of the same CFSP measure.

Uniformity of interpretation of
EU law would be further guaranteed if the Court affirmed jurisdiction to hear
requests for preliminary rulings (and AG Walthelet in paras 61-62 of his
opinion in Rosneft suggests that the
Court can rule on CFSP preliminary rulings). The importance of judicial
dialogue between the CJEU and national courts has been repeatedly affirmed in
the Court’s case law (Opinion 1/09; CILFIT; Adeneler; Kamberaj). Moreover,
absence of the Court jurisdiction to hear on preliminary rulings would be at
issue with the third paragraph of Article 267 and the CILFIT doctrine.

The prohibition of judicial
dialogue and cooperation between national and EU courts in CFSP may very well
be a breach of the right to effective judicial remedy as enshrined in Article
47 EU Charter of Fundamental Rights. Article 47 Charter creates what has
been described as a “composite, coherent, and autonomous” standard of EU
judicial protection. Pursuant to Article 19(1) TEU, national Courts shall
provide remedies sufficient to ensure effective legal protection in the fields
covered by Union law, with the standard set and as determined by the CJEU
(which has the final saying on interpretation and application of the Treaties).
Completely excluding the Court’s jurisdiction from an area of EU law such as
CFSP would seriously hinder the system of judicial protection (see to a similar
effect Gestoras Pro Amnistía and Others v Council
par 53; Segi
and Others v Council par 53).

Even though it is left to the
discretion of national courts to decide whether to make a reference for a
preliminary ruling as well as the questions to be referred, completely ruling
out the opportunity for an applicant (or the national court) to make such a
request may indeed be against Article 47 Charter. All the more so if one
accepted the reading proposed by the Council in its appeal in H, that is, that the national court does
not have the power to annul the CFSP decision. This would leave a legal vacuum
in the annulment of the provision (unlike what happened in C-583-11
Inuit, where the Court found that
existence of alternative legal remedies allowed for a restrictive rule on
judicial remedy).

Political questions doctrine

The preferable option seems to be
that only genuinely political acts of CFSP cannot be subject to the Court’s
substantial judicial review, although the Court should be able to monitor
compliance with the procedural rules of the Treaty and compliance with
fundamental human rights. This position is very similar to that expressed by
the Commission in H, where it said
that only sovereign acts of foreign policy cannot be scrutinised by the Court –
without saying anything of formal control.

In H, the Court seemed to conclude that if there was any other reason
for the which the Court should have jurisdiction, that reason takes precedence
over the exclusion of Article 24, and then the Court does have jurisdiction.
This is too broad an understanding of the Court’s powers.

In its judgment in Manufacturing
Support & Procurement Kala Naft v Council, the CJEU ruled that it
does not have jurisdiction on a CFSP provision which is not a restrictive
measure against natural or legal persons pursuant to Article 275 TFEU, and the substantial
result might be similar in Rosneft
(par 85 AG opinion).

For the reasons explained above,
the Court should accept the request on the preliminary ruling in Rosneft, but should then take the
opportunity to draw a clear distinction: on one hand, (a) EU acts which are
purely political and diplomatically sensitive acts of sovereign foreign policy;
on the other hand, (b) all remaining CFSP decisions, all acts of implementation,
and provisions of general application.

On (a), which I submit should be
assessed on a case by case basis and on their substantial content: the Court
should recognise it lacks power of judicial review. Those acts, determined with
a “substance over form” rule (see Les
Verts par 27; AG Wathelet seems to be taking this position in paras 49-50
of his opinion in Rosneft; see also Gestoras Pro Amnistía and Others v Council
par 54; Elitaliana
v Eulex Kosovo par 48-49) will have too indirect an effect on
individuals (as the case law on Article 263(4) TFEU now stands)

Such acts also have such a
discretionary content that courts should defer to the decision of the political
actors who adopted them. The latter element, which American constitutional
lawyers refer to as the “political question doctrine” is present in many
jurisdiction (see par 52 AG Opinion in Rosneft):
deference toward the so called “actes de gouvernement”. The Commission proposed
this thesis in its written submission and at the oral hearing in Rosneft. The “political question
doctrine” is the attitude of courts not to review issues which are inherently
political, are best left to the discretion of the actor who took the decision,
and are ultimately non-justiciable.

In the leading case on the issue,
Baker v Carr, the US Supreme Court
held that a question is eminently political if it presents some characteristics
such as “a textually demonstrable constitutional commitment of the issue to a
coordinate political department”, or “an unusual need for unquestioning
adherence to a political decision already made”. While in some cases involving
foreign policy decisions the need for adherence to a political decision is
evident (ie the ECJ could hardly decide that the EU cannot prohibit commerce
with certain Russian companies involved in Crimea at all), arguably the
retention of CFSP provisions in the TEU, the preference for intergovernmental
institutions in that domain, the scant role of the European Parliament in the
decision-making process, not to mention the exclusion of the Court’s
jurisdiction, all militate in favour of a strong constitutional preference for
CFSP to be resolved by purely political departments. The doctrine could very
well be embraced for the first time by the ECJ in deciding Rosneft.

On the other hand, as regards
category (b), which includes the case of the “decision on staff management” in H, the Court should exercise its powers
of judicial review.